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wallstreetfighter, Employment Lawyer

Category: Employment Law

Satisfied Customers: 16863

Experience: 14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits

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Hello - my wife was diagnosed with a seizure disorder. Her

Resolved Question:

Hello - my wife was diagnosed with a seizure disorder. Her doctor gave her a note using form WH-380-E stating that her condition is lifelong and she is able to travel only once a month as traveling more often would worsen her condition. Now the company is consolidating two regions into one and posted a new role identical to hers for the new region, and asked her along with a person from the other office doing a similar job and any other interested parties to apply for this role. The role description doesn’t say anything about travel, but during an interview she was told the new role would require 75% travel and since she has a doctor’s note limiting her travel abilities, they will have to let her go. Also, I believe she is under protection of ADA law that requires providing a reasonable accommodation, but there wasn’t even a discussion about it. Should she just take a separation package that will be offered or there are other alternatives worth exploring?

thank you. Will she still be eligible to file a EEOC complain even after signing a separation package? The separation package, as always, has an item about releasing all the claims against the company.

wallstreetfighter :

Did it state no claims of discrimination?

wallstreetfighter :

The law is not settled however your spouse can still file an EEOC complaint,

wallstreetfighter :

however if the case is not settled,

wallstreetfighter :

and you have to sue the employer in Court, any judgment given may be precluded by the release,

wallstreetfighter :

she may also have any award given to her reduced by the severance as well,

The EEOC issued a guide on how Waivers are enforced and have to be drafted,

wallstreetfighter :

you can review this at the link above

wallstreetfighter :

If you have any further questions please do not hesitate to ask.

wallstreetfighter :

If she was a contract employee or part of a union, she may have other options such as a breach of contract, however since TX is an at will state,

wallstreetfighter :

an employee has limited rights except to make a claim of discrimination, to challenge a forced resignation or termination

wallstreetfighter :

If you have any further questions please do not hesitate to ask.

wallstreetfighter :

If satisfied please provide us with positive feedback, thank you

Customer:

yes, the separation agreement states no claims against the list of laws/acts including ADA

wallstreetfighter :

the waiver would limit her from collecting in an eventual lawsuit against the employer,

wallstreetfighter :

however she could still file an EEOC complaint,

wallstreetfighter :

if she has signed a separation agreement with the waiver, make sure the waiver was draft as per the law,

wallstreetfighter :

if it was her legal rights would be limited in terms of collecting an award.

Customer:

i'm sorry, what does it mean "the waiver was draft as per the law"? How would we know it is a draft?

wallstreetfighter :

you have to make sure the release was written as per the requirements of the law to be valid,

wallstreetfighter :

A valid waiver agreement must: 1. Offer some sort of consideration, such as additional compensation, in exchange for the employee’s waiver of the right to sue; 2. Be voluntary and based on informed consent; 3. Not require the employee to waive future rights; and 4. Comply with applicable state and federal laws.

wallstreetfighter :

The EEOC maintains that severance agreements in which an employee waives the right to file a discrimination charge with the EEOC violates the above provision and creates a chilling effect on the employee’s willingness to assist the EEOC in the investigation of a charge. The EEOC does acknowledge, however, that a severance agreement can legally include a provision under which an employee waives any right to recover monetary damages in a lawsuit. In other words, the EEOC’s position is that an employee cannot waive the right to file a claim with the EEOC, but the employee can waive the right to recover any damages

Customer:

are there any documents (job description, etc) that we need to make sure to have in possession in case we decide to file a claim with EEOC?

wallstreetfighter :

you would have to show that the employer knew of her disability, and failed to provide her reasonable accommodations,

wallstreetfighter :

and that the job position can be handled by her, with some sort of simple accommodations,

wallstreetfighter :

the job advertisement as well will help you

Customer:

do you mean the job advertisement would help to access potential payout?

wallstreetfighter :

yes, also to show that travel was not an essential part of the job

Customer:

ok, thank you. last question - "having an attorney send a letter threatening an EEOC complaint" sounds like an easier first step to test the waters. Would you be able to give an idea how many hours an attorney would bill to draft such a letter?

wallstreetfighter :

I would expect 2-5 hours for a letter,

wallstreetfighter :

you should contact a local attorney to send the letter and negotiate the severance as well,

wallstreetfighter :

The employer may offer her a larger amount,

Customer:

right, it's just that her last day is tomorrow and she'll sign a separation agreement with a waiver being a part of that agreement. So, any legal actions will have to be taken after the waiver had been signed

wallstreetfighter :

yes,

Customer:

ok, thank you and good night

wallstreetfighter :

good luck, and if satisfied with our service please provide us with positive feedback, thank you

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14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits

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